UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 18-cr-042-LM Opinion No.

Victoria Duford

O R D E R

Defendant, Victoria Duford, moves for compassionate release

under

(c)(1)(A), arguing that her underlying

health conditions combined with the threat of contracting COVID-

19 while incarcerated at Federal Correctional Institution

(“FCI”) Danbury warrant her release. Alternatively, Duford

requests a judicial recommendation to the Bureau of Prisons

(“BOP”) that she be released to home confinement for the

remainder of her sentence. The government objects to her

release. The court held a telephonic hearing on Duford’s motion

on June 25, 2020, at which she made a statement.

STANDARD OF REVIEW

A court may grant so-called “compassionate release” to a

defendant under

(c)(1)(A). The statute

provides, in relevant part, that:

[T]he court, upon motion of the Director of the Bureau of Prisons or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that—

(i) extraordinary and compelling reasons warrant such a reduction

. . .

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

(c)(1)(A); see also U.S.S.G. § 1B1.13

(sentencing guidelines policy statement on compassionate

release).

Where, as here, a motion for compassionate release is

properly before the court, the court must determine if the

defendant is eligible for release. A court may reduce a term of

imprisonment under the compassionate release provision if it:

(1) finds that extraordinary and compelling reasons warrant the

reduction; (2) finds that the defendant is not likely to be a

danger to the safety of any other person or the community; and

(3) considers the sentencing factors outlined in

(a). See

(c)(1)(A); U.S.S.G. § 1B1.13; see

also United States v. Sapp, No. 14-CR-20520,

, at

*2 (E.D. Mich. Jan. 31, 2020); United States v. Willis,

2 Supp. 3d 1185, 1187 (D.N.M. 2019). The defendant has the burden

of showing that she is entitled to a sentence reduction. United

States v. Ebbers, No. S402CR11443VEC,

, at *4

(S.D.N.Y. Jan. 8, 2020). And the court has “broad discretion in

deciding whether to grant or deny a motion for sentence

reduction.” United States v. Paul Gileno, No. 3:19-CR-161-

(VAB)-1,

, at *2 (D. Conn. Mar. 19, 2020)

(internal quotation marks omitted).

BACKGROUND

In April 2018, Duford was arrested for her participation in

a conspiracy to traffic methamphetamine. She stipulated to

detention at that time. In July 2018, Duford pleaded guilty to

one count of conspiracy to distribute 50 grams or more of

methamphetamine in violation of

(a)(1),

(b)(1)(A)(viii) and 846. In June 2019, this court sentenced

Duford to 43 months of imprisonment and five years of supervised

release. Since her sentencing, Duford has been serving her

sentence of imprisonment at FCI Danbury in Connecticut. Her

projected release date is February 16, 2021.

On May 6, 2020, Duford filed a pro se motion for

compassionate release. Doc. no. 53. The court then appointed

her counsel. The court denied Duford’s motion without prejudice

because Duford had not demonstrated that she had exhausted her

3 administrative remedies as required by the compassionate release

provision. Doc. no. 56. On June 12, 2020, with the assistance

of counsel, Duford filed a supplemental motion for compassionate

release. Doc. no. 59. Her motion alleges that Duford has

several medical conditions that put her at high risk of

experiencing severe illness from COVID-19, and that the

conditions at FCI Danbury increase the likelihood that she will

contract the virus.

DISCUSSION

Duford requests compassionate release under

(c)(1)(A). Alternatively, she requests that the court

provide a judicial recommendation to BOP that she serve the

remainder of her sentence on home confinement. The court will

consider each of these requests in turn.

I. Compassionate Release

Regarding Duford’s request for compassionate release, the

court must first consider whether Duford has established an

extraordinary and compelling reason for her early release.

Duford argues that she can meet this threshold based on the

combination of her underlying medical conditions and the

conditions of incarceration at FCI Danbury. Specifically, she

has submitted medical records demonstrating that she has a

combination of medical conditions, including chronic viral

4 hepatitis C. Doc. no. 59-7 at 4, 15; doc. no. 16 at 19. Duford

also contends that there is a serious outbreak of COVID-19 at

FCI Danbury and that BOP is not taking adequate precautions to

prevent the spread of the virus and keep inmates safe.

A. Applicable Legal Test

The Commentary to the Sentencing Guidelines Policy

Statement regarding compassionate release identifies four

categories of “extraordinary and compelling reasons” that

justify a sentence reduction: (1) the defendant’s medical

condition; (2) the defendant’s age; (3) the defendant’s family

circumstances; and (4) a catchall category. U.S.S.G. § 1B1.13,

App. Note 1. Under the policy statement, a medical condition

constitutes an “extraordinary and compelling reason” if the

defendant is suffering from a terminal illness, or has a serious

physical or medical condition, cognitive impairment, or

deteriorating physical or mental health due to age “that

substantially diminishes the ability of the defendant to provide

self-care within the environment of a correctional facility and

from which he or she is not expected to recover.” U.S.S.G. §

1B1.13, App. Note 1(A)(i)-(ii). The catchall category

encompasses any “extraordinary and compelling reason other than,

or in combination with” the defendant’s medical condition, age,

or family circumstances. See U.S.S.G. § 1B1.13, App. Note 1(D).

5 In the context of the current pandemic, courts have held

that a generalized risk of infection by the virus is not, by

itself, sufficient to constitute an extraordinary and compelling

reason warranting release. See United States v. Ramirez, No. CR

17-10328-WGY,

, at *3 (D. Mass. May 12, 2020)

(collecting cases). “On the other hand, a combination of health

and age factors that put a prisoner at a substantially higher

risk due to COVID-19 along with a documented risk of the disease

in the facility where the prisoner is incarcerated may

demonstrate extraordinary and compelling reasons to reduce the

prisoner’s sentence.” United States v. Bischoff, No. 17-CR-196-

JD,

, at *2 (D.N.H. May 19, 2020) (collecting

cases in support).

B. Current Status at FCI Danbury

Here, there is no doubt that FCI Danbury has been hit hard

by the virus and that an active outbreak of COVID-19 exists at

the facility. On April 3, 2020, Attorney General William Barr

issued a memorandum directing BOP to prioritize the use of home

confinement to combat the spread of COVID-19.1 In that

memorandum, Attorney General Barr identified FCI Danbury as a

1 Atty. Gen. William Barr, Increasing Use of Home Confinement at Institutions Most Affected by COVID-19, (Apr. 3, 2020), https://www.justice.gov/file/1266661/download.

6 facility that was experiencing “significant levels of infection”

and directed BOP to prioritize FCI Danbury and two other

facilities in its use of home confinement.2 On May 12, 2020, the

District Court for the District of Connecticut recognized in

Martinez-Brooks v. Easter that there was a “serious outbreak” at

FCI Danbury. Martinez-Brooks v. Easter, ___ F. Supp. 3d ___,

, at *20 (D. Conn. May 12, 2020) (class action

habeas suit on behalf of all inmates at FCI Danbury, alleging a

claim of deliberate indifference against BOP for failure to use

all available avenues to reduce prison population to protect

against COVID-19). At that point in time, 205 inmates had been

tested for COVID-19; 69 inmates and 56 staff members had tested

positive. Id. at *6. That court also observed that these

figures might “underrepresent the true number of COVID-19

infections at FCI Danbury.” Id. at *20.

Now, over a month later, it appears that FCI Danbury still

has an active outbreak, but it is much less widespread than a

month ago. BOP’s website represents that, in total, 95 inmates

and 61 staff members have recovered from the virus, and one

inmate died from the virus.3 BOP’s website also indicates that

2 Id.

3 BOP, COVID-19, https://www.bop.gov/coronavirus/ (last visited June 26, 2020).

7 there is currently only one inmate infected with the virus at

FCI Danbury.4

Evidence of an active outbreak giving rise to a risk of

infection is, however, not enough alone to warrant the

extraordinary relief of early release. Duford must also show

that she suffers from a medical condition or conditions that

place her at high risk for severe illness from the virus. See

Bischoff,

, at *2; Ramirez,

, at

*4-5. She has not done so. None of her medical conditions meet

or approximate those listed by the Centers for Disease Control

and Prevention (“CDC”) as putting an individual at high risk for

severe illness from COVID-19.5

C. Defendant’s Medical Condition

Duford contends that hepatitis C is a liver disease and

that liver diseases fall within the high-risk category. The CDC

guidelines currently state that someone with liver disease

“might be at an increased risk for severe illness from COVID-

4

5 CDC, People of Any Age with Underlying Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra- precautions/people-with-medical-conditions.html?CDC_AA_ refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019- ncov%2Fneed-extra-precautions%2Fgroups-at-higher-risk.html (last visited June 26, 2020).

8 19.”6 And, it is true that hepatitis C can affect the liver.7

However, CDC guidance also states that the CDC currently has “no

information about whether people with hepatitis B or hepatitis C

are at increased risk for getting COVID-19 or having severe

COVID-19.”8 Thus, on its face, CDC guidance does not currently

list hepatitis C as a high-risk condition.

The government has bolstered this general guidance with the

opinion of a physician who has studied Duford’s medical records.

Dr. J. Gavin Muir opines that Duford is not at higher risk for

developing severe illness from COVID-19 because “there is no

evidence from her bloodwork that the [hepatitis C] virus is

having a deleterious effect on her liver.” Doc. no. 55-2 at 2.

Dr. Muir’s opinion is based on the fact that in October 2019,

Duford had a “positive viral load for her [h]epatitis C,”

“normal liver function tests [and] normal complete blood count.”

Id. at 1. Dr. Muir also observed that Duford reported to BOP

that she has always been asymptomatic regarding her hepatitis C

and that she has never received treatment for it. Id. at 1, 14.

6 Id.

CDC, Hepatitis C, https://www.cdc.gov/hepatitis/ 7

hcv/index.htm (last visited June 25, 2020).

CDC, What to Know about Liver Disease and COVID-19, 8

https://www.cdc.gov/coronavirus/2019-ncov/need-extra- precautions/liver-disease.html (last visited June 25, 2020).

9 The court defers to Dr. Muir’s medical opinion and finds

that Duford’s hepatitis C does not place her in the high-risk

category. Compare United States v. Hilliard, No. 17 CR 35-01

(VB),

, at *2 (S.D.N.Y. June 15, 2020) (denying

compassionate release where defendant’s hepatitis C was

asymptomatic and he had refused treatment for that condition in

the past), with United States v. White, No. 2:17-CR-00198-4,

, at *4 (S.D. W. Va. June 12, 2020) (finding

extraordinary and compelling reason for release where defendant

had hepatitis C, BOP had designated defendant as high-risk

inmate, and FCI Elkton had “massive outbreak” of COVID-19

cases). Duford’s other medical conditions, though significant,

do not meet or approximate the CDC’s listed high-risk

conditions. The court therefore finds that Duford has failed to

establish an extraordinary and compelling reason supporting her

release. Because Duford has not established an extraordinary

and compelling reason, the court need not discuss the other

factors impacting the compassionate release analysis. Duford is

not eligible for early release.

II. Judicial Recommendation to BOP

The court next turns to Duford’s alternative request that

the court provide a judicial recommendation to BOP that Duford

serve the remainder of her sentence on home confinement. Under

10

(c)(2), BOP has the authority “to place a

prisoner in home confinement for the shorter of 10 percent of

the term of imprisonment of that prisoner or 6 months.”

(c)(2). Under this provision, Duford would not

typically be eligible for home confinement at this point in her

sentence. But Congress recently amended the time restrictions

of § 3624(c)(2) in the Coronavirus Aid, Relief, and Economic

Security Act (“CARES Act”). That amendment gave Attorney

General Barr the power to “lengthen the maximum amount of time

for which the Director [of BOP] is authorized to place a

prisoner in home confinement.”

(b)(2),

(March 27, 2020). Attorney General

Barr has directed BOP to utilize this expanded home confinement

authority to protect vulnerable inmates and prevent or control

the spread of the virus.9

The decision whether to exercise this authority in a

particular case and release a defendant to home confinement lies

entirely with BOP; the court lacks the power to order that a

prisoner be released to home confinement, even under the CARES

Act. See

(b), 3624(c)(2); Tapia v. United

States,

(2011); United States v. Barnes, No.

Atty. Gen. William Barr, Increasing Use of Home 9

Confinement at Institutions Most Affected by COVID-19, (Apr. 3, 2020), https://www.justice.gov/file/1266661/download.

11 16-20308,

, at *2 (E.D. Mich. May 26, 2020). The

court may, however, make a judicial recommendation to BOP that a

defendant be placed on home confinement. See

(b)(4); United States v. Doshi, No. 13-CR-20349,

, at *1 (E.D. Mich. Mar. 31, 2020); United States v.

Best, No. 5:16-CR-236-FL,

, at *1 (E.D.N.C. Oct.

30, 2019). In evaluating whether to give such a recommendation,

the court considers the non-exhaustive discretionary factors

laid out in Attorney General Barr’s Memo (e.g., danger posed by

inmate’s release, conduct while in prison, and the inmate’s

vulnerability to COVID-19).10

The court finds that Duford is an ideal candidate to be

released to home confinement under the expanded home confinement

authority of the CARES Act. Duford has a lengthy criminal

history and was involved in a serious drug-trafficking

conspiracy. But, since her incarceration, she has been a model

inmate and put forth a tremendous effort to rehabilitate

herself. During her detention pending sentencing, she completed

193 hours of classes, including the North Country Crossroads and

Decisions program, individual counseling, and Living in Balance

and Seeking Safety, among others. Doc. no. 31-3 at 4-9. Duford

10Atty. Gen. William Barr, Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020), https://www.bop.gov/resources/news/ pdfs/20200405_covid-19_home_confinement.pdf.

12 volunteered to serve as a speaker for the Operation Impact

Program, which visits schools in Grafton County to educate

students about making positive choices. Duford also worked over

2,000 hours as a cook in the kitchen and as part of the

janitorial staff. Id. at 9.

While in federal prison, she has continued this behavior.

She works as a vegetarian cook. She is continuing her education

by taking additional courses and is pursuing a certification in

nutrition. And Duford has not committed any disciplinary

infractions while in federal prison. Based on this significant

turnaround in Duford’s behavior, the court finds that Duford

would not pose a danger to the community if released to home

confinement. Indeed, the government conceded at the hearing

that Duford would not pose a danger if released.

Duford’s medical conditions also favor her release to home

confinement. Although not serious enough to warrant the

extraordinary relief of compassionate release, Duford’s medical

conditions make her more vulnerable to the dangers of COVID-19

than a healthy inmate.

Finally, Duford’s projected release date weighs in favor of

her release to home confinement. Her projected release date is

February 16, 2021—fewer than eight months away. Duford also

represents that her “home confinement date” is October 10, 2020,

13 meaning that, under the pre-CARES Act law, she would be eligible

for home confinement as of that date. To put it simply, Duford

is very close to being released on conditions regardless of the

pandemic. The court finds that this fact combined with the

others detailed above makes Duford an excellent candidate for

immediate release to home confinement. Her release would not

only protect her from infection but would also help reduce the

overall population at FCI Danbury making the remaining inmates

at the facility safer.

In sum, although the court finds that Duford does not

qualify for the extraordinary relief of early release under §

3582(c)(1)(A), the court recommends that BOP place her on home

confinement for the remainder of her sentence. Duford’s request

for a judicial recommendation to BOP that she be placed on home

confinement is granted.

CONCLUSION

For the foregoing reasons, Duford’s supplemental motion for

compassionate release (doc. no. 59) is granted in part and

denied in part. The court grants Duford’s request for a

judicial recommendation that BOP place her on home confinement

14 for the balance of her sentence but denies without prejudice her

request for compassionate release.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

June 30, 2020

cc: Counsel of Record U.S. Probation U.S. Marshal

15